Complainant

Respondent

Parties

Eoin  McDonnell

Bord Na Mona

Representatives

 Declan McDonnell

Niamh Ní Cheallaigh IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00048095-001

11/01/2022

This case is concerned with a claim for a statutory redundancy by a seasonal worker with the Respondent in circumstances where there are disputes as to his being called back for work over a period of years. The Complainant did seek and was refused the terms of a voluntary redundancy package. The Respondent denies any termination of employment by them on grounds of redundancy, or at all.

Before taking the submissions and evidence, the Complainant was asked to indicate the date of termination of his employment, when he maintains he was dismissed on grounds of redundancy. The reason for asking this question was explained to the Complainant as being one of time limits related to the Redundancy Payments Act and where no date of termination was provided on the complaint form. After a break, the Complainant returned and his representative stated that March 31st, 2021, was the date of termination. This issue is significant in considering this complaint and will be explored later in the findings and conclusions.

In his written submission the Complainant set out the following dates and related relevant events. These were supported through his oral evidence.

Seasonal Worker 2008 engaged in peat production-working until 2017 in periods of employment varying from 3 months to 8 months each year. His rate of pay varied with different components and he said in evidence he was not sure of his average weekly pay.

In addition to his seasonal work in peat production, the Complainant worked in the IT Department of the company from November 2017 to the end of April 2018.

In early 2018 he received a call as usual from his supervisor that there was seasonal peat production work available. He advised that he was working for the Respondent in the IT Department and would be available in a few weeks. In his evidence he said he was never contacted by the Respondent again that season. Asked by the Chair why he did not contact the supervisor himself, he replied that he did not think that was his responsibility.

Bord na Mona began a highly publicised transition programme in 2018 and introduced a voluntary redundancy scheme.

He contends that he was not called back for the 2019 season. Nobody contacted him. In reference to claims by the Respondent that he was contacted and gave various reasons for not being available including that he was travelling in America that summer, he denied being contacted and, on his behalf, his representative wh0 is also his father stated that he was away only for a week that summer. Asked by the Chair why he did not contact the Respondent about work that year, the Complainant again said that he did not think that was his responsibility. In evidence he said he received no call whatsoever in 2019 and none of those present at the hearing as witnesses were people who would have ever contacted him about work. The person who usually rang him was named as Mr James Kelly. Later in evidence he did accept that the second witness for the Respondent contacted him in August 2021 adding he did not recognise his name.

On October 17th, 2019, he delivered an application for voluntary redundancy. He received an acknowledgement. He considered that approval would be a formality given he had not been called in 2018 or 2019. He followed up on his application and was informed in January 2020 that it was under consideration.

He was not called back in the Spring of 2020. He was hearing reports of other colleagues who received voluntary redundancy. Between June and October of that year he made repeated efforts to obtain a response to his application. In early December he received a generic letter stating that the voluntary scheme was closed and they, the Respondent, were looking forward to working with him in the future.

In January 2021 he submitted a data request and received information which contained no reference to or details of why his application was rejected.

On March 19th, 2021, he instructed a solicitor who sent a letter on his behalf. On June 1st there was a reply to the solicitor that the Complainant was offered work in 2018 and 2019 which was declined. No mention was made of 2020. In his evidence the Complainant accepted there was contact in 2018 but denied any contact in 2019. There was no reply to further correspondence from his solicitor in June 2021.

In early August 2021 Bord na Mona contacted the Complainant and offered him work. He gave evidence that he declined that work saying that they had made him redundant three years earlier in 2018. Following his rejection of the offer of work, the Respondent wrote to his solicitor noting he had been offered and rejected work the previous week. It was submitted on his behalf that this was a cynical effort by the Respondent to mitigate any potential liability related to the failures to call him back in previous years.

In his evidence the Complainant said that he was on social welfare all the time and has now secured alternative employment.

Asked why he considered March 2021 the date of dismissal, the Complainants position is that after his application for voluntary redundancy was rejected, he was told they were looking forward to working with him but he was not offered any work again until August 2021, after he began an appeal. Normally he would have been recalled in March for April/May of each year.

In a closing statement having listened to all the evidence, the Complainants representative stated that the Complainant had years of unblemished service. The Company was good to him and gave him the role in IT. In April 2018, the Complainant did receive a call, said he was in IT in the company but would be available in a few weeks. That was the very last call he received until 3rd August 2021. The representative would have been aware of developments within the Company and the challenges they faced. The Complainant thought he was going to be accepted for voluntary redundancy. Following the refusal of the voluntary redundancy application-it was a further nine months before he was contacted.

In their written submission IBEC referenced Section 7(1) of the Redundancy Act which requires that to be entitled to a redundancy lump sum, an employee must have been laid off or on short time for a minimum period. The Complainant was not dismissed for reasons of redundancy or any other reason and therefore the claim must fail.

The date of commencement is agreed. It was submitted that the Complainant was contacted in 2018,2019 and 2020 but on each occasion, he was unavailable for work for various reasons. He was again contacted in August 2021 and again refused work. At that point the Complainant stated that he had engaged a solicitor and would not be returning to work.

Relevant dates:

17 October 2019 the Complainant applied for voluntary redundancy.

31 October 2019 the application was acknowledged

7 January 2020 the Complainant was advised that all applications were being considered.

25 November 2020 the Complainant was informed in writing that his application was no longer being considered as the company would be employing approximately 350 people in the Peat Restoration Project. There followed dates of correspondence between the Company and the Complainants solicitor as to why his application was refused. These dates continued until August 2021 following the contact with an offer of employment in August 2021 at which time it was noted that the Complainant stated that he did not intend to return to work.

Decisions of the EAT were cited where it was found that suitable offers of employment were made to the Complainant in those cases and the appeal for a redundancy payment was rejected in each case.

In response to the Chair, it was submitted that no records were kept of calls and no correspondence was issued to seasonal workers confirming their employment during the period 2018 to 2020.

Evidence of Mr Lenehan

The witness explained that two named supervisors would make calls to those being called for seasonal work usually beginning in mid-March to return in Mid-May. The Complainant was part of a nine-man team of seasonal workers.

The witness then began to give evidence about calls made to the Complainant by named supervisors which appeared to be from some sort of note which he had prepared for the hearing. There was a spreadsheet apparently. This referred to calls made to the Complainant by Mr Kelly-who was not present at the hearing. Asked by the Chair if he had any direct evidence of what contacts were made with the Complainant the witness said none. Asked if there were any records kept of these calls in terms of dates etc, he replied no. Asked when he had spoken to Mr Kelly about the events of 2018 and 2019, he replied some weeks before the hearing. IBEC agreed with the Chair that this witness had no direct evidence to offer to the hearing-only hearsay.  

Evidence of Mr Hoey

This witness is a production manager. He gave some background to the work arrangements for the various seasons covered by the complaint and some details of productions developments and difficulties experienced in that same period. He was personally involved in the call back in 2021 and contacted the Complainant to call him back for work in August of that year. He described 2019 as a normal year. 2020 was not a straightforward season. A lot of people in horticulture were not called back that year. Season 2021 was not typical either. In 2021 two lists were amalgamated together. From August 2020 following an agreement at the WRC, records of contacts with seasonal workers was kept. By August 2021 when the call back for that year commenced, the Complainant was near the top of the list based on seniority. The offer was of work until January 2021. The available work which commenced that year has continued for two years. He rang the Complainant and explained about the new work PCAS and offered him work until January 2022. The Complainant said he was not returning-that he should have received the VR package. He had not spoken to the Complainant since then.

Closing statement for the Respondent

The representative again referred to the terms of the Redundancy Payments Act. There were job offers. There was no dismissal. There was no basis for the claim of redundancy to be upheld as there was no dismissal.

At the commencement of these deliberations, I wish to express complete dismay at the manner in which this Respondent, a State Company, managed, or mismanaged the employment of those like the Complainant who were engaged on a seasonal basis, often for many years. That there is nothing to suggest that the obligations to those employees by way of contracts, or paperwork in terms of the termination or recall for work were managed within the employment legal framework is truly shocking. This employer appears to operate based  on the type of model which might have operated in the 1980s without regard to various legislation as far back as 1967 and certainly after the rights of fixed term workers were enshrined in EU Directives followed by national legislation. That it took until a Union intervention at the WRC in 2020 to achieve even a proper record of the contacts made with the seasonal workers speaks volumes. But and, I wish to emphasise this, the arrangement reached in 2020 falls well short of significant statutory obligations of the employer to such workers under various statutes which I am satisfied were not being met as late as August 2021 when the Complainant was last offered work.

A redundancy is a dismissal. One of a particular kind but nonetheless a dismissal must occur or there must be an extended lay off giving rise to a claim of dismissal on grounds of redudnacy. That dismissal comes about either because the employer declares the person entirely surplus to requirements or alternatively, the employee is placed on temporary lay-off for a period and after four weeks of lay-off have elapsed can apply for a statutory redundancy payment. If the employer rejects the claim for statutory redundancy the employee can make an appeal of that decision to the WRC. There are various qualifications around all of these terms within the legislation, but essentially, I have provided a shorthand version of how the system operates.

The following is an extract from Section 9 of the Act of 1967, as amended

Dismissal by employer.

9.— (1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or

(c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer‘s conduct.

 It follows therefore that the first issue to be determined is if there was a dismissal in this case, and if so when that occurred and then whether that dismissal was on grounds of redundancy. It could be found that the employment ended with a dismissal in 2018 when the Complainant was not employed for seasonal work. The same could be said for 2019 when it could be found that the Complainant was dismissed or alternatively that the Complainant resigned in 2019 in failing to contact the employer to indicate his availability when he says there was no contact from the employer or if the Respondent is to be believed in not making himself available that year. Given the extent of the carelessness in these matters on the part of the employer, a finding against the Complainant would be disproportionately unfair where the employer is denying any dismissal.

Generally, in relation to the date of termination of employment for the purposes of a claim of statutory redundancy, I find the Complainant mixes and matches those dates to suit his complaint.  And the Complainant did refer in his correspondence to the employer seeking voluntary redundancy as not having worked for two or three years as the case may be suggesting that he considered the 2018 season as marking the date of dismissal. Were it accepted that the date of termination occurred in 2018 or 2019, this claim for statutory redundancy could not succeed for two reasons. Firstly, it would be out of time in terms of an appeal for payment of statutory redundancy (or unfair dismissal). Secondly no application was made in respect of dismissal in those two seasons at the time. Thirdly and most significantly, I conclude that if there was a dismissal in either of these years and for either season-I am satisfied that these were normal seasons and there was no redundancy by way of a surplus of workers. In summary, I find the employment was not dismissed in 2018 or 2019 for any reason including redundancy.

The evidence of Witness Hoey was very telling where he described 2020 as not being a normal production year suggesting that the Respondent certainly did not call the Complainant back to work that year. I note the Respondent in their correspondence with the Complainants solicitor in March 2021 does not claim that the Complainant was offered employment in the 2020 season. I am satisfied that the date of anything resembling an extended lay off commenced in March 2020 and continued until August 3rd, 2021, when the complainant was offered and refused further work. That refusal of work is found to comply with section 12(2) of the Act when the Complainant indicated he would not accept the offer of work after an extended period when he was not working.

Right to redundancy payment by reason of lay-off or short-time.

12.—(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The Respondent seeks to rely on the offer of work in August 2021 as a reasonable offer of work for the purposes of rejecting the claim based on various precedents. None of those precedents come close to the facts in this case. Leaving aside the disputed accounts of what happened in 2018 and 2019, the Respondent continued to claim the Complainant was a seasonal employee at all times during the period 2018-2021. The offer of work made in August 2021 was well outside the normal season when the Respondent worked prior to 2018. The Complainant was entitled to consider himself laid off from a period commencing no later than March 2020 when there was no offer of employment for that season until March 2021 when he was offered further work until January of the following year. Given that he was informed that he would be offered work in March 2021 when the season usually commence but there was no offer for a further five months, I find that the Complainants is entitled to rely on section 12(2) as applying in his case with effect from August 2021.

Section 12 of the 1967 Act deals with time limits for submitting a complaint of non-payment of statutory redundancy.

Time-limit on claims for redundancy payment.

24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate,

the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.

I find that with the application of the terms of section 12(2) to the circumstances of this case Complainant with effect from August 3rd, 2021, that the complaint submitted in January 2022 falls within the 52-week period contained in Section 24 (c) of the Act.

This was an unusual case in a appeal for statutory redundancy. If the reasoning is somewhat cumbersome in trying to come to grips with the facts as presented in the context of the legislation, that is down in part at least to actions and inactions of both sides over a three-year period commencing in 2018. The most grievous of which were the repeated failures of the Respondent to comply with their statutory obligations to this seasonal employee over an extended period and indeed their failure to cover off their own position in paperwork in 2018 2019 2020 and in the earlier part of 2021 season.

The appeal is allowed.

CA—00043295 The appeal brought by Eoin McDonnell in January 2022 regarding non-payment of statutory redundancy by Bord na Mona is allowed.

The dates of employment:  June 2008 to 3 August 2021. In those years worked the Complainant was a seasonal employee.

For the purposes of calculation, the period from May 2018 until August 2021 do not form part of the calculation as the Complainant did not work with the Respondent during that period.

The maximum payment for the purposes of calculation will require verification but, in any event, will not exceed €600

Statutory Redundancy/Disputed dismissal/Period of lay off/application of section 12